ADMINISTRATIVE REPORT

Date: June 11, 2001
Author/Local: MG Thomson/7328

RTS No. 1182

CC File No. 5807

Council: July 10, 2001

TO:	Vancouver City Council
FROM:	General Manager of Engineering Services in Consultation with the Director of Real Estate Services
SUBJECT:	1549 Clark Drive - Proposed Encroachment Agreement

RECOMMENDATION

THAT Council authorize the Director of Legal Services to enter into an Encroachment Agreement for the portions of the building on (1549 Clark Drive) the East 120 feet of Block 58, except the Part in Plan 4123, now road, District Lot 264A, Plans 185 and 1771 that encroach onto Clark Drive and Grant Street, the same as shown on the attached plan as Appendix "A", subject to the following terms and conditions:

1. The annual fee to be nil;

2. The Encroachment Agreement to be for the life of the existing structure; and

3. The agreement to be to the satisfaction of the Director of Legal Services and the General Manager of Engineering Services, and to contain other terms and conditions as considered necessary and reasonable by the Director of Legal Services.

COUNCIL POLICY

There is no Council policy directly related to this matter.

The Encroachment By-Law establishes fees to be charged for agreements prepared pursuant to the By-Law and general conditions, such as a requirement for cancellation provisions, but does not establish criteria for setting aside fees.

The subject property contains a municipally designated heritage building which is listed as a category "B" on the Vancouver Heritage Register. Permitting the building to remain encroaching onto the street will help ensure preservation, and is therefore consistent with Council's heritage policy.

PURPOSE

The purpose of this report is to seek Council authority to enter in an Encroachment Agreement with the Vancouver School Board for portions of the building at 1549 Clark Drive that encroach onto Clark Drive and Grant Street, with provisions for annual fees waived, and for the agreement term to be for the life of the existing structure.

BACKGROUND

The Vancouver School Board owns the property at 1549 Clark Drive, which is more particularly described as: The East 120 feet of Block 58 except the Part in Plan 4123 now road, District Lot 264A, Plans 185 and 1771.

On June 15, 1999, Council In Camera approved the acquisition of a 32.2 square metre (346 square foot) portion of the subject lands for $12,000 plus applicable GST.

While finalizing the legal survey work and the transfers, a problem with the underlying title was discovered.

The present title excepts the East 7 feet instead of the Part in Plan 4123. We enclose a sketch as Appendix "B" that shows the problem.

The history of the problem can be summarized as follows:

On April 23, 1913, the (then) owner of Block 58, John McDowell executed a conveyance to the City of a portion of Block 58 that is described in Document Filed 49692 as "the Easterly portion having a mean depth of 8 feet 5 inches more or less". The conveyance was not deposited in the Land Title Office until June 26, 1951; however, it makes reference to Plan 4123.

Plan 4123 shows that the intent was to acquire a "trapezoid" from Block 58. The acquisition was intended to be 7 feet in width from the southeast corner of Block 58 to a point 66 feet northerly, then run at an angle to a point 9.83 feet (9 feet 10 inches) from the northeast corner of Block 58.

Our sketch (Appendix "B") shows the difference between the "East 7 feet" and "the portionon Plan 4123" as hatched.

On February 2, 1922, the City acquired the balance of the East 120 feet of Block 58 through a "tax redemption" and owned the subject lands under title 72818I. This title refers in the description to "Plans 1771 and 4123". Our composite maps have (for as long as we can determine) reflected the use as road of the portion of Block 58 as shown on Plan 4123.

On November 25, 1964, the City transferred the lands to the Vancouver School Board and title 501131L was raised. Our problem results from this transfer, which was for the "East 120 feet of Block 58, except the East 7 feet thereof, District Lot 264A Plans 185 and 1771".

The title raised reflects the transfer. However, the transfer was wrong in that it should have reflected the "portion on Plan 4123", and not the "East 7 feet".

The result we have is that there is an overlap between the portion of Block 58 on Plan 4123, and the portion presently in the School Board's title. Put another way: we had no ability to transfer to the School Board, in 1964, the hatched portion as shown on our sketch; however, we did execute such a transfer, and it was accepted by the Land Title Office.

The School Board has acknowledged this problem. In discussion with the parties, the proposed solution is for the School Board to "quit claim" the overlapping area, and for the City to file a statutory declaration correcting the 1964 transfer.

In reviewing this matter, it has been determined that portions of the building encroach onto Clark Drive and Grant Street. The encroachments are mainly the eaves of the building, although there is a slight encroachment of the cladding, window sills and an even smaller encroachment of the foundation of the buildings onto Clark Drive.

It is clear that the existing building, substantially constructed some 30 years or more, before the property was owned by the School Board, was built to be parallel to and coincident with the line as depicted on Plan 4123.

DISCUSSION

When encroachments as described herein are discovered, it is common practice for the City to then enter into an Encroachment Agreement to validate their existence on City road. The Encroachment By-Law establishes fees, and requires inclusion of a cancellation clause. The fees are set as $115.00 for the first 150 square feet, and $3.00 per square foot thereafter. The total encroachment in this case is 691square feet, which would generate an annual fee of $1,738.00. Termination provisions included in agreements are normally immediate with six (6) months to remove the encroachment.

We are recommending both the annual fee be set at nil, and the encroachments be allowed to remain for the life of the structure.

There are a number of reasons to support these positions, including:

1. The encroachments existed in 1964 when the City conveyed the land to the School Board and have existed ever since;

2. The School Board has been very supportive in both the sale of the portion of the site now required for the left turn bay at 1st Avenue and Clark Drive, and in assisting to rectify the problem caused by the City error in the 1964 conveyance; and

3. The Vancouver School Board and the City have a long-standing cooperative relationship and this decision is consistent with this history of cooperation.

CONCLUSION

The General Manager of Engineering Services in consultation with the Manager of Real Estate Services recommends approval of the Recommendation.

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(c) 1998 City of Vancouver